While this update can and should be considered a victory for the food allergy community, FAACT is concerned that the CDC does not specifically and concisely set out the manner in which schools should “ensure the safety” of students with food allergies and instead only includes a link to a 103-page document. Being mindful of the unprecedented burden on school officials and to address the overwhelming concerns of the food allergy community, FAACT sent a follow-up letter to Director Redfield on May 20, 2020 requesting that, in addition to the inclusion of the hyperlink to the CDC’s Voluntary Food Allergy Guidelines, specific language be used in the CDC’s guidance to specifically address students with food allergies in a manner equivalent to students with other disabilities such as asthma.

In “Considerations for Schools”, the CDC addresses “Ventilation” under “Maintaining Healthy Environments” by giving the specific example of “opening windows and doors”. This guidance goes on to instruct “[d]o not open windows and doors if doing so poses a safety or health risk (e.g., risk of falling, triggering asthma symptoms) to children using the facility.” FAACT respectfully requests that the CDC amend the language addressing “Food Services” under the same “Maintaining Healthy Environments” provisions. Sample language was included in the follow-up letter to Director Redfield.

Please read FAACT's May 20, 2020 Follow-up Position Statement to the CDC below.

The Food Allergy & Anaphylaxis Connection Team (“FAACT”) greatly appreciates the Center for Disease Control and Prevention’s (“CDC”) prompt attention to the concerns outlined in our May 6, 2020 letter to you and the subsequent revisions to the school COVID guidance and the attention to the safety of students with food allergies during the coronavirus disease 2019 (COVID-19) pandemic, specifically the document “Considerations for Schools” released May 19, 2020 and the May 2020 CDC Activities and Initiatives Supporting the COVID-19 Response and the President's Plan for Opening America Up Again. The addition of instructions on how to safely use communal areas such as cafeterias, specifically the guidance to “stagger use and clean and disinfect between use” and the guidance to “ensure the safety of children with food allergies” with the hyperlink to the CDC’s “Voluntary Guidelines for Managing Food Allergies in Schools and Early Care and Education Programs” (herein after “Food Allergy Voluntary Guidelines”) are a step in the right direction. While these additions address the concerns FAACT raised in our May 6, 2020 letter to you, specifically the risk of schools denying students the right to accommodations prohibiting the consumption of allergens in the classroom or requiring the consumption of food items outside of the classroom (accommodations encouraged in the CDC’s Food Allergy Voluntary Guidelines), FAACT is still concerned that school officials may have difficulty in understanding this, given that the hyperlinked Food Allergy Voluntary Guidelines are 103 pages long. In an effort to ease the unprecedented burden on school officials and to address the overwhelming concerns of the food allergy community, FAACT respectfully requests that the CDC revise the “Considerations for Schools” document to specifically address students with food allergies in a manner equivalent to students with other disabilities such as asthma.

In “Considerations for Schools”, the CDC addresses “Ventilation” under “Maintaining Healthy Environments” by giving the specific example of “opening windows and doors”. This guidance goes on to instruct “[d]o not open windows and doors if doing so poses a safety or health risk (e.g., risk of falling, triggering asthma symptoms) to children using the facility.” FAACT respectfully requests that the CDC amend the language addressing “Food Services” under the same “Maintaining Healthy Environments” provisions. Currently this section of “Considerations for Schools” states “Have children bring their own meals as feasible or serve individually plated meals in classrooms instead of in a communal dining hall or cafeteria, while ensuring the safety of children with food allergies” with a hyperlink to the CDC’s Food Allergy Voluntary Guidelines. FAACT requests that, in addition to the hyperlink, the CDC specifically include language similar to the above language addressing asthma. This could simply be done by including language that states that food or foods containing allergens should not be consumed in the classroom if doing so poses a safety or health risk to students with food allergies or violates Federal disability laws. As prescribed by the Food Allergy Voluntary Guidelines, students with food allergies should be afforded the accommodation of either prohibiting the consumption of their allergens in the student’s learning environment (i.e. the student’s classroom) or the accommodation of having all food items consumed outside of the student’s learning environment (i.e. the student’s classroom). Classes that contain students with food allergies could still consume their meals in the communal eating area (i.e. cafeteria or dining hall) while allowing classes that do not contain a student with a food allergy to consume their meals in the classroom. This would greatly reduce the population size of the communal dining area, thus mitigating the risk of the spread of COVID-19. Additionally, this risk would be further minimized if schools follow the guidance set forth in “Considerations for Schools” specifically addressing the use of “Communal Spaces” and instructing schools to “stagger use and clean and disinfect between use.”

Should you have any questions or concerns regarding FAACT’s position and recommendation, please contact FAACT’s Vice President of Civil Rights Advocacy, Amelia G. Smith, J.D., at Amelia.Smith@FoodAllergyAwareness.org.

We appreciate your prompt attention to the concerns raised in our May 6, 2020 letter and your continued attention to this crucial issue affecting the 6 million American children with food allergies.

As promised on May 1, 2020, FAACT's Civil Rights Advocacy staff remains accessible for contact re: any and all Civil Rights issues. FAACT's Civil Rights Division is actively monitoring and researching the impact of COVID-19, related directives and guidelines, school closures, and the impact of the CARES Act on the rights of individuals with food alleriges.

We ask that anyone who has concerns or experiences disability discrimination during these trying times, contact our VP of Civil Rights Advocacy at Amelia.Smith@FoodAllergyAwareness.org.

Additionally, FAACT's Civil Rights Advocacy staff remains available for assistance with all Civil Rights Advocacy issues, including those related to Section 504 of the Rehabilitation Act of 1973, the IDEA, the ADA, or school nutrition programs.

Since our launch, FAACT has been committed to advocating for the civil rights of individuals with food allergies, and this advocacy will continue during the COVID-19 pandemic.

Please see FAACT's Position Statement to the CDC on May 6, 2020 below.

We appreciate the CDC’s dedication and diligence in your approach to the coronavirus disease 2019 (COVID-19) pandemic. We know that you are working tirelessly to protect the health of the American public.

The Food Allergy & Anaphylaxis Connection Team (“FAACT”) has been actively monitoring and researching the impact of COVID-19, related directives and guidelines, school closures, and the CARES Act on the rights of individuals with food allergies. One document that stands to impact the rights of students with food allergies to equally participate in educational opportunities along side their non-allergic peers is the Center for Disease Control and Prevention’s (“CDC”) “Interim Guidance for Administrators of U.S. K-12 Schools and Child Care Programs to Plan, Prepare, and Respond to Coronavirus Disease 2019 (COVID-19)”. On page 9 of this guidance document, it is recommended “[w]hen there is minimal to moderate community transmission” schools “[a]void mixing students in common areas. For example, allow students to eat lunch and breakfast in their classrooms rather than mixing in the cafeteria.” The guidance document goes on to set out recommendations on how to limit mingling of students if it is not possible to suspend the use of common areas. Understandably so, the food allergy community is greatly concerned about the consumptions of meals in the classroom. It has been the position of FAACT since it’s inception that food-free classrooms are ideal and that prohibiting the allergens of a food-allergic student from their classroom is an essential disability accommodation for many students with food allergies.

FAACT understands the uniqueness of the current COVID-19 pandemic. We appreciate that this is an unprecedented public health crisis, and we understand the need to limit communal exposures in schools. At the same time, as the Nation’s leading organization offering civil rights advocacy assistance for families affected by food allergies, we are greatly concerned that the CDC’s guidance document may impact the right of students with food allergies. While enhanced cleaning of classrooms may reduce allergenic protein residue in classrooms where food is consumed (thus possibly reducing the number of first-time reactions in schools below the twenty-five percent (25%) prevalence currently demonstrated), it is FAACT’s position that this enhanced cleaning of classrooms in which foods are consumed is insufficient to accommodate students with a known food allergy.

The U.S. Department of Education, Office for Civil Rights, and the U.S. Department of Justice have determined that food allergies may be deemed a disability that requires accommodations under federal disability laws and regulations such as Section 504 of the Rehabilitation Act of 1973, the Americans With Disabilities Act, and the Americans with Disabilities Act, and the ADA Amendments Act of 2008. The CDC’s own “Voluntary Guidelines for Managing Food Allergies in Schools and Early Care and Educational Programs” (on which Eleanor Garrow-Holding, FAACT’s President and CEO, served as an expert panelist for the development of) recognizes that the implementation of said guidelines “must be implemented consistent with applicable federal and state laws and policies.” Additionally, on April 27, 2020 the U.S. Secretary of Education, Betsy DeVos, announced that she would not seek any waivers under the CARES Act of students’ rights afforded under Section 504 of the Rehabilitation Act of 1973 and the Individuals with Disabilities Education Act. Instead Secretary DeVos held that schools must continue to accommodate students with disabilities, including providing a free and appropriate public education (“FAPE”) in the least restrictive environment.

Students with food allergies, a protected disability that affects one or more major life activity including, but not limited to, eating, breathing and the major bodily functions of the immune, digestive, respiratory, and circulatory systems, are at a great risk of an allergic reaction when their allergens are present in the classroom. While prohibiting the consumption of allergens in the classroom would seem like an easy mitigation of this risk, this approach is not a universally accepted approach. Since FAACT’s launch in January 2014, FAACT’s Civil Rights Advocacy Division has assisted over 4,000 families, many of whose main concern was a school refusal to prohibit a student’s allergens from being consumed in the student’s classroom. Through FAACT’s advocacy and assistance, many of these families who were facing the challenge of schools failing to exclude their student’s allergens from the classroom were able to receive accommodations requiring food items to be consumed outside of the classroom. FAACT, along with these families as well as others in the food allergy community, are concerned that the CDC’s proposed alternative of consuming meals will undermine these accommodations.

Avoiding allergen exposure in the classroom is essential to preventing allergic reactions. Some of this exposure may be mitigated by enhanced cleaning but prohibiting the consumption of allergens in a classroom is not just a matter of preventing food allergic reactions. Students with known food allergies are also likely to fixate on the allergen in the classroom, including not only the food item itself, but also any crumbs or spills, the hands of their classmate that consumed the allergen, and everything that classmate touches. This attention to the allergen distracts the student with food allergies, thus reducing their attention to the classroom instruction and effectively resulting the denial of FAPE to the food allergic student.

FAACT respectfully requests that the CDC amend their “Interim Guidance for Administrators of U.S. K-12 Schools and Child Care Programs to Plan, Prepare, and Respond to Coronavirus Disease 2019 (COVID-19)” to include a provision specifically recognizing that classrooms that contain a child with a known food allergy, especially those receiving accommodations through a 504 plan, IEP, or other accommodation plan, be specifically listed as a specific incidence where it is “not possible to suspend use of common areas”, at least for certain portions of the school’s population (i.e. certain classroom bodies of students). FAACT is greatly concerned that without such guidance, schools across the country will refuse to provide these necessary accommodations to students with food allergies based on the CDC’s Interim Guidance’s suggestion that meals be consumed in individual classrooms.

Should you have any questions or concerns regarding FAACT’s position and recommendation, please contact FAACT’s Vice President of Civil Rights Advocacy, Amelia G. Smith, J.D., at Amelia.Smith@foodallergyawareness.org.

We appreciate your prompt attention to this crucial issue affecting the 6 million American children with food allergies.